Bowen v. Johnson, 8753.

• Decision Date: 27 June 1938
• Docket Number: No. 8753.,8753.
• Citation: 97 F.2d 860
• Parties: BOWEN v. JOHNSON.
• Court: U.S. Court of Appeals — Ninth Circuit

97 F.2d 860 (1938)

BOWEN v. JOHNSON.

No. 8753.

Circuit Court of Appeals, Ninth Circuit.

June 27, 1938.

Hugh Allen Bowen, in pro. per.

Frank J. Hennessy, U. S. Atty., and R. B. McMillan and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

This is an appeal from an order of the United States District Court for the Northern District of California denying appellant a writ of habeas corpus.

The facts are not in dispute. Appellant is confined in the United States prison at Alcatraz Island, California, under restraint of defendant, the prison warden. He was indicted December 14, 1930; convicted of murder under the provisions of § 273 of the Penal Code of the United States, 18 U.S.C.A. § 452; sentenced to life imprisonment by the United States District Court of Georgia for the Northern Division; and transferred from an eastern prison to Alcatraz by order of the Attorney General.

The indictment, upon which appellant was tried and convicted, charged him, together with John E. Smith and Frank Bowen, with shooting one Raymond Kington to death with a shot gun within the Rome Division of the Northern District of Georgia "within the jurisdiction of said court, and within a certain place and on certain lands reserved and acquired for the exclusive use of the United States and under exclusive jurisdiction thereof, and acquired by the United States by consent of the legislature of the State of Georgia, to-wit: Chickamauga and Chattanooga National Park, sometimes known as Chickamauga and Chattanooga National Military Park, in said State of Georgia * * *."

Appellant's principal claim is that the District Court in which he was tried had no jurisdiction over the Park in which it is alleged the crime was committed for the reason that jurisdiction over such area could not constitutionally have been ceded to the United States and in fact was not so ceded, and that the indictment is defective in not alleging the details of such cession to the United States by the State of Georgia.

In Archer v. Heath, 9 Cir., 1929, 30 F.2d 932, the court said:

"Where a judgment of a United States court is attacked directly by appeal, the judgment will be reversed, unless the jurisdictional facts appear some place in the record; but on a collateral attack, such as by habeas corpus, the judgment is presumptively valid, unless it appears affirmatively from the record that the court was without jurisdiction. This distinction has been repeatedly recognized by the Supreme Court, and it has been universally held that a petitioner is not entitled to a discharge on habeas corpus simply because the record of conviction fails to show affirmatively the jurisdiction of the court in which the conviction was had. Ex parte Cuddy, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154; United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036." (Page 933.)

In Walsh v. Archer, 9 Cir., 1934, 73 F. 2d 197, an habeas corpus proceeding, the petitioner contended that the alleged murder was not committed on the high seas on board a vessel but rather within the State of California and within the jurisdiction of the courts of that State. This court said:

"Whether the location of the alleged crime was upon the high seas and exclusively within the jurisdiction of the United States required consideration of many facts and seriously controverted questions of law, including the alleged error involving the jurisdiction of the court.

"If petitioner's contention be true, then every person serving a sentence for an offense alleged to have been committed on the high seas, within the limits of an Indian reservation, national forest, or elsewhere upon lands exclusively within the jurisdiction of the United States, could claim the right to a hearing on habeas corpus by alleging in his petition that the trial court was without jurisdiction, thus retrying on habeas corpus one of the issues of fact required in every such case to be passed upon by the trial court and the jury. * * *" (Page 199.)

In that case the court decided that, where the lack of jurisdiction does not appear affirmatively on the face of the record, such matters of law and fact are for the determination of the trial court and cannot be questioned on habeas corpus.

The indictment, in the case before us, recites that the jurisdiction of the United States over appellant is predicated upon the fact that the alleged crime was committed "within a certain place and on certain lands reserved and acquired for the exclusive use of the United States and under exclusive jurisdiction thereof, and acquired by the United States by consent of the legislature of the State of Georgia, to-wit: Chickamauga and Chattanooga National Park * * *." The question then arises, "Does the record affirmatively show that the United States was without jurisdiction?" Had the indictment gone no further than the phrase "and acquired by the United States by the consent of the legislature of the State of Georgia" and not added the words "to-wit: Chickamauga and Chattanooga National Park * * *," the question would undoubtedly have to be answered in the negative. It is argued that the addition of the latter phrase rendered the indictment fatally defective — it being asserted that the United States has no jurisdiction over the Chickamauga and Chattanooga National Park. But if the United States could constitutionally acquire jurisdiction over the Park, then the question whether in fact the United States did have such jurisdiction over the Park and over the appellant becomes a seriously controverted question of law and fact within the meaning of Walsh v. Archer, supra, and it is not within our province to question this on habeas corpus. The record in this case does not disclose a lack of jurisdiction in the United States unless it can be said that the United States is without power to exercise jurisdiction over a national park because lacking constitutional power to accept a cession thereof, with,...